Response to ET3 - affirmed breach by working notice

[sangie5952]

It helps if you keep to one thread for all posts - people can miss stuff.

 

And no - legally speaking there is no good reason whatever for working three months notice when attempting to claim unfair constructive dismissal. You appear to have missed the entire point of constructive unfair dismissal - that the employers breach must be so substantial and serious that it gives one no alternative other than to resign unilaterally, either as a direct response to a very serious incident (such as an assault), or in immediate response to an action of the employer that goes to the root of the contract and where the employers whole grievance procedure had been exhausted. It's foundation is "no alternative". If you continue to work for them for  three months that undermines any claim. 

 

So I'm afraid that there are no precedents to quote - what you did is entirely inconsistent with your claim; and, frankly, if there was such a serious breach, stretching credibility beyond its limits. The tribunal will simply not believe that your employer was such a b......d that you had no alternative but to leave without a job to go to, but you continued to work there for three months because you are a selfless person! In all honesty, having seen what is a winning position for constructive dismissal, I've never seen a case where the claimant could tolerate another minute, never mind three months.

 

Your unused leave could have been resolved after you left - you did not need to be employed by them to argue that, certainly not for three months. That would simply be an add on claim if not resolved. Everything else is, bluntly, unbelievable. You probably are telling the truth - there's no good reason to lie here because it does you no benefit. But I can see how the lawyer will spin this - and what the tribunal will very likely believe- that you are making a frivolous claim. Truth isn't always credible. This one isn't! 

 

You will no doubt recall that in your last posts I was careful to say that I wasn't  commenting on the chances of winning constructive unfair dismissal. The bar is set high - and the odds of winning are very, very low. Even with a strong case. Without even knowing what your alleged breach was, or the context, I can tell you that you have shot yourself in the foot. Your chances went through the floor when you continued working for them for three months. You will need a much stronger argument, and it's hard to come up with a different one now - you wrote it in your claim! Any change now won't be believed. 

 

If they make you an economic settlement offer, think carefully before refusing to talk money. It may be the only money you see. 

 

[sangie5952]

No. Don't do that! Sit it out. Provided you do not ignore any direction (or heavy hint) by a judge, then stick to your story no matter how weak. You can withdraw at any time - even on the day. The employer might make you an economic offer - it may not be a lot, but it's better than nothing. If the judge throws it out, then you have lost nothing. Judges prefer to hear the case then you lose - they will throw out a no hope case, but might let you proceed if it isn't a lost cause.

 

At this stage, having submitted, you may as well see it through, at least a bit further. I don't really approve of advising people to submit no hope cases in the hope of a pay out. It damages the credibility of the tribunal system. But you have gone this far without realising, so nothing is lost by hanging around a bit longer. 

 

What, exactly, did the employer do to make you decide to resign? Don't fret about them "maybe" reading this - employers and their lawyers have better things to do than reading anonymous websites in case they see someone they know. And tribunals require disclosure so there are no secrets.

[sangie5952]

Ok. Sorry.  The employer / managers may not be very good, but there is no breach here that I can see that justifies constructive dismissal. For starters, almost everything is out of time for a claim! You can't just roll all your complaints into one and only count the last one! 

 

Failed to issue your contact in time? Did did so later? Issue resolved - you can't include it. Not an fundamental breach anyway - in law it's a minor slip up.

 

Denied overtime rates - out of time. You can't include it.

 

Denied allowance and extra leave? You objected, and won. Matter closed - you can't include it.

 

Denied flexitime? There's no right to it, it's within the power of the employer to refuse. So no fundamental breach. 

 

Didn't like your appraisal scoring? Sorry, you did the right thing by arguing, but... There is no right in law on this. Performance is up to the employer and a tribunal will never intervene in performance issues. 

 

And you are going to intensely dislike what I am about to say, so sit down.... You have no right in law to have a grievance upheld. You may not like the comments made or the decision, but unless they are incorrect in law, then the employer can find whatever they like - a tribunal will not interfere with that judgment. And it is technically correct - an appeal can simply consider whether the process was correctly carried out. It doesn't have to reconsider the outcome.

 

I'm really sorry. I always try to remain impartial - there's two sides to every story, and after years of doing this I can usually guess both sides! I can see that you have had an enormous clash of culture with the employing organisation / managers. That isn't to say either you or they are "right". Right is a matter of perspective, and irrelevant now anyway. But there is a big difference between something being "fair" and something being "lawful". I'm not seeing unlawful here at all. And certainly not enough to warrant a claim of constructive unfair dismissal.

 

As I said, I'd be tempted to hang in there as long as doing that presents no threat to you, but definitely back off at a fast rate of the tribunal even vaguely hints at it. And if offered money to go away, maybe haggle a bit, but do not turn down anything. Bird in the hand, and so on???

 

 

[sangie5952]

48 minutes ago, Giantpanda said:

Thanks sangie5952

 

Appreciate the honesty.  I would be concerned that the tribunal might view my claim as frivolous or malicious and order me to pay costs.  Given that the costs may include air fares for witnesses etc I am loathe to risk it. Time for me to let go of the anger and move on methinks...  Life goes on.

You will not be ordered to pay costs unless you are warned and ignore the warning. It's highly unlikely, however, that a tribunal would approve air fares for witnesses anyway without some substantial cause. The rule is that they don't pay travel from overseas. So if you want people from overseas as witnesses, you will have to pay them yourself anyway. 

 

Give yourself some credit. Most people have either called me names, accused me of heinous acts, or reported me for being horrible to them by this stage. You're doing a remarkable job of staying calm 

 

I still think that you should give it some time and see what happens. I doubt you'll get far, but a pay off is cheaper than a tribunal for the employer. But equally, you must do what is best for you. 

[sangie5952]

You could have had access to my advice earlier - if you'd joined our large union that organises in the public sector! However, it does depend... Policies vary. If they have their own internal legal resource who can confidently secure the case, then they may not make an offer. If they are insured (and few are these days) or paying for advice, they'll likely be advised to make an offer. That's usually the case as forit's cheaper  them. 

[sangie5952]

If they've engaged a local solicitor, they probably don't have internal resources. Lawyers in the public sector generally specialise in other agreed of law - they'd need an employment specialist and may not have one on the books. So it's costing them. Just sit back, wait. You have nothing to lose. As I said, if you were in danger of a costs order, you'll be warned by the judge. So it's costing you nothing but a bit of time to keep this going a while longer. If it gets in the way of your life, eating up time, then rethink it. But if not, go with the flow and see what happens.

[sangie5952]

You are welcome. Come back if you need more advice. Join UNITE! 

[sangie5952]

The only thing this will achieve is getting Ms X sacked. 

 

Someone else's grievance is not evidence of your grievance. Someone else's grievance which was withdrawn isn't evidence of anything at all - it never happened. Nobody "owns it" because it never happened. If it had existed, it would have had no import at all unless Ms X appeared as a witness against her current employer, at which point they would, in any case, to her apart at the tribunal for presenting facts not in evidence (and then look for the first chance to sack her, which would probably be the next day). And toy have no right to information from our about a third party who had nothing to do with your case. 

 

The short version - forget it. It wouldn't help you at all, but it could get her sacked.